Alternative stories about copyright
One of the most hotly debated issues right now is the question of copyright. I recently had the opportunity to debate the issue at a seminar at Södertörn College, and tried to explore the issue by exploring the narratives that surround copyright.
There is a main narrative that is fairly simple: copyright enables authors to live from their work. It encourages creativity and innovation and makes it economically feasiable for creators to create.
This, however, is vastly simplified and it can be debated if it is even true. There are plenty of holes in this story that can be pointed out by a child. The first is that there was plenty of creativity before there was any kind of intellectual property right. So the casual relationship between copyright and creativity is simple non-existent. Instead, it seems reasonable to assume an alternative story that gives a far better version of what actually happened.
When printers and printing technology came, the opportunity for a mass market for certain types of content opened. The problem, however, was that people are naturally creative and it is not possible to build a mass-market on a mass-producer situation. We need a few works that can be printed and re-printed and distributed. How, then, do we filter the enormouse human creativity? How do we weed out those creations, those works, we want to commercialize? Well, obviously we need a filtering mechanism. One such mechanism could be copyright - enabling the distrubtion chain to sift through human creativity and choose a number of works that will be mass-produced and mass-marketed.
Copyright, thus, does not encourage creativity as much as filter it to create the preconditions for commercial markets in content. The roots of copyright are found in the abundance of creativity seen as a problem for a distrubtory technology that could never distributed mass-to-mass, but needed to distribute few-to-mass.
There are alternative ways of formulating copyright too. Let us examine three.
1) Combinatorial copyright. It is often said that copyright encourages creation of content. This is, to be kind, an uninteresting observation. In order to discuss the utility of a certain copyright regime we need to discuss what kind of content it encourages creators to fabricate. For every possible copyright regime c(1)---c(n) we should ask what classes of content it actually favours. If we want to we could construct copyright o encourage a wide array of different pieces of content, by simply applying all the modern tools for content analysis we have. Instead of affording protection blindly we could afford protection only to those works that deviate from the mainstream of created works. A work of music that statistically deviates from all other regsitered and public domain works could get protection, whilst one that largely resembles the usual mainstream music would not be afforded protection on account of it not being an original work in the statistic sense.
2) Darwinian copyright. We could argue that copyright should encourage useful and wanted creativity, rather than all kinds of creativity. One way of judging if a work should be afforded copyright would then be to offer copyright as a ex post protection regime. Assume that I create a piece of software and that everyone uses this. Then I could sue the state for copyright protection after a year or so. I would then be given copyright on the software if I could show that my creative capacity - my capacity to produce more useful things - had actually been impeded by the fact that noone paid me for my software. There are several interesting features in this model. One is that a company that has succeeded once will not be afforded more protection, but will have to rely on its reputation and its business savvy to get paid for the rest of its products. It is a guess, but not a bad guess, that this would lead to less risk of monopoly in software industries.
3) Emission copyrights. Creative space is a strange thing. Imagine the set of all possible three minute songs. This set is infinite in itself, but if we take the set of all humanely discernable three minute songs it probably becomes finite. It is interesting to se what happens to this set if we introduce a copyright regime. For every work that is copyrighted a subset of variations on that song becomes "parodies" or "almost-copies" within the shadow of the copyrighted work. The copyrighted work destroys a certain section of the creative space surrounding it. The end result is a situation where copyright destroys a finite resource - the creative space. We've seen this before and know how to handle it. It seems as if we could draw upon environmental law and simply solve the problem by limiting copyright emissions in creative space. Allow WIPO or some other organisation 100 000 copyrights to allocate through auctioning and make sure that the allocation is efficient through the design of the auction.
So - a different story about how copyright came about and three different versions of copyright that come from simply questioning the story about copyright or the details left out of that story. There must be many more. The way we tell the stories about law seem to limit the discussions of these laws in politics. That is a naive and somewhat trivial observation, but none-the-less an important one, it seems.